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Hogan, Schwarzenegger submit brief urging redrawn Md. district

Democrats engaged in 'extreme' gerrymandering, Republicans tell high court

Former California Gov. Arnold Schwarzenegger speaks at a rally outside the U.S. Supreme Court in Washington, Tuesday, Oct. 3, 2017. The Supreme Court heard arguments in a case about political maps in Wisconsin that could affect elections across the country. (AP Photo/Manuel Balce Ceneta)

Former California Gov. Arnold Schwarzenegger speaks at a rally outside the U.S. Supreme Court in Washington, Tuesday, Oct. 3, 2017. The Supreme Court heard arguments in a case about political maps in Wisconsin that could affect elections across the country. (AP Photo/Manuel Balce Ceneta)

Gov. Larry Hogan has joined fellow Republican Arnold Schwarzenegger in urging the U.S. Supreme Court to erase and order the redrawing of Maryland’s westernmost congressional district, saying it was invalidly created by Maryland’s Democratic leadership to freeze out GOP voters and ensure the election of a Democrat as U.S. representative.

In papers filed with the justices Friday, Hogan and Schwarzenegger — a former California governor – made more of a public policy than a legal argument against “extreme partisan gerrymandering” that they said created the majority Democratic 6th Congressional District.

Extensive gerrymandering, apart from stifling the minority party’s constitutional right to political association, essentially terminates moderate voices in each political party, Hogan and Schwarzenegger wrote through their attorney.

Attorney David A. Schwarz stated that, in an overly partisan district, the majority party’s primary is essentially the general election.

Party primaries are won by capturing the vote of the majority party’s extreme wing, added Schwarz, of Irell & Manella LLP in Los Angeles.

“Politicians whose only competitive election is their party primary are more responsive to that electorate than the electorate as a whole,” the attorney wrote. “As a result, legislators often hold far more extreme views than the citizens they ostensibly represent. This deprives many citizens of any mechanism by which they can influence the policy making process and disenfranchises moderate voters in particular.”

Hogan and Schwarzenegger are widely regarded as moderate Republicans whose moderation enabled them to win the top office in their respective Democratic-dominated states.

The two submitted their brief as the Supreme Court prepares to hear constitutional challenges on March 26 to Maryland and North Carolina’s congressional redistricting.

The Maryland case involves Republican voters’ claim that the state’s Democratic leaders redrew the 6th Congressional District following the 2010 census in a successful and unconstitutional attempt to sap their votes and organizational activities while ensuring a Democrat’s election.

A three-judge U.S. District Court panel agreed with that argument in November and ordered the state to redraw the district to achieve partisan equity, an order that has been stayed pending the Supreme Court’s resolution of Maryland Attorney General Brian E. Frosh’s appeal of that ruling.

His high court brief notwithstanding, Hogan is not waiting for the Supreme Court’s decision, which is expected by this summer.

The governor, who is in his second and final term, in late November ordered the creation of a nonpartisan emergency commission to draw new boundaries for the 6th District in light of the three-judge panel’s decision. The commission will have until the spring to propose a more evenly drawn 6th Congressional District that protects the rights of all voters regardless of party, according to Hogan’s executive order.

Frosh, in his filing with the Supreme Court last month, stated that the First Amendment gives lawmakers latitude to consider politics in redrawing congressional districts, as long as they are not excessively partisan.

The three-judge panel improperly established “no line between acceptable and excessive political consideration,” Frosh wrote in the brief, which was co-signed by Maryland Solicitor General Steven M. Sullivan, counsel of record before the Supreme Court. “Any degree of partisan intent and almost all political aims of any nature will suffice, because any intent to draw a boundary in a way that marginally benefits one political party, even as it serves another (valid) redistricting goal, can be characterized as an attempt ‘to impose a burden’ on members of a competing political party ‘because of how they voted or the political party with which they were affiliated.’ Thus, this intent element is likely to be satisfied in every redistricting challenge.”

The Republican voters, in a filing last week, said the First Amendment places a strict limit on partisan gerrymandering.

“Government regulation may not favor one citizen over another on the basis of his or her political views,” the GOP voters’ attorney, Michael B. Kimberly of Mayer Brown LLP in Washington, wrote in the Supreme Court filing.

Schwarzenegger — best known as an action-movie star — and Hogan equated a gerrymandered district to a scripted basketball game to illustrate the unfairness to minority party voters.

“Where extreme partisan gerrymandering exists, district lines are drawn in a manner that ensures that all seats remain safe,” Schwarz wrote for Hogan and Schwarzenegger. “In such districts, elections are as predictable as a Harlem Globetrotters game. It may be theoretically possible for a party to lose a gerrymandered district, but it is highly unlikely.”

The Maryland case before the Supreme Court is Linda H. Lamone et al. v. O. John Benisek et al., No. 18-726. The North Carolina case is Robert A. Rucho et al. v. Common Cause et al., No. 18-422.


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